Exhibit 4.41
AMENDMENT NO. 17 TO LOAN AND
SECURITY AGREEMENT
AMENDMENT NO.
17 TO LOAN AND SECURITY AGREEMENT (this “Amendment”),
dated as of March 12, 2009 by and among Handy &
Harman, a New York corporation (“Parent”), OMG, Inc., a
Delaware corporation formerly known as Olympic Manufacturing Group,
Inc. (“OMG”), Continental Industries, Inc., an Oklahoma
corporation (“Continental”), Maryland Specialty Wire,
Inc., a Delaware corporation (“Maryland Wire”), Handy
& Harman Tube Company, Inc., a Delaware corporation
(“H&H Tube”), Camdel Metals Corporation, a Delaware
corporation (“Camdel”), Canfield Metal Coating
Corporation, a Delaware corporation (“Canfield”),
Micro-Tube Fabricators, Inc., a Delaware corporation
(“Micro-Tube”), Indiana Tube Corporation, a Delaware
corporation (“Indiana Tube”), Lucas-Milhaupt, Inc., a
Wisconsin corporation (“Lucas”), Handy
& Harman Electronic Materials Corporation, a Florida
corporation (“H&H Electronic”), Sumco Inc., an
Indiana corporation (“Sumco”), OMG Roofing, Inc., a
Delaware corporation (“OMG Roofing”), OMNI Technologies
Corporation of Danville, a New Hampshire corporation
(“OMNI” and together with Parent, OMG, Continental,
Maryland Wire, H&H Tube, Camdel, Canfield, Micro-Tube, Indiana
Tube, Lucas, H&H Electronic, Sumco and OMG Roofing, each
individually, a “Borrower” and collectively,
“Borrowers”), Handy & Harman of Canada, Limited, an
Ontario corporation (“H&H Canada”), ele
Corporation, a California corporation (“ele”), Alloy
Ring Service Inc., a Delaware corporation (“Alloy”),
Daniel Radiator Corporation, a Texas corporation
(“Daniel”), H&H Productions, Inc., a Delaware
corporation (“H&H Productions”), Handy
& Harman Automotive Group, Inc., a Delaware corporation
(“H&H Auto”), Handy & Harman International,
Ltd., a Delaware corporation (“H&H International”),
Handy & Harman Peru, Inc., a Delaware corporation
(“H&H Peru”), KJ-VMI Realty, Inc., a Delaware
corporation (“KVR”), Pal-Rath Realty, Inc., a Delaware
corporation (“Pal-Rath”), Platina Laboratories, Inc., a
Delaware corporation (“Platina”), Sheffield Street
Corporation, a Connecticut corporation (“Sheffield”),
SWM, Inc., a Delaware corporation (“SWM”), Willing B
Wire Corporation, a Delaware corporation (“Willing” and
together with H&H Canada, ele, Alloy, Daniel, H&H
Productions, H&H Auto, H&H International, H&H Peru,
KVR, Pal-Rath, Platina, Sheffield and SWM, each individually, a
“Guarantor” and collectively,
“Guarantors”), Steel Partners II, L.P., a Delaware
limited partnership, successor by assignment from Canpartners
Investments IV, LLC, in its capacity as agent pursuant to the Loan
Agreement (as hereinafter defined) acting for the financial
institutions party thereto as lenders (in such capacity, together
with its successors and assigns, “Agent”), and the
financial institutions party thereto as lenders (collectively,
“Lenders”). Capitalized terms used herein which are not
otherwise defined herein shall have the respective meanings
ascribed thereto in the Loan Agreement.
W I T N E S S E T
H:
WHEREAS, Agent,
Lenders, Borrowers and Guarantors have entered into financing
arrangements pursuant to which Lenders (or Agent on behalf of
Lenders) have made and provided and may hereafter make and provide
loans, advances and other financial accommodations to Borrowers as
set forth in the Loan and Security Agreement, dated March 31, 2004,
by and among Agent, Lenders, Borrowers and Guarantors, as amended
by Amendment No. 1 to Loan and Security Agreement, dated as of
October 29, 2004, Amendment No. 2 to Loan and Security Agreement,
dated as of May 20, 2005, Amendment No. 3 and Waiver to Loan and
Security Agreement, dated as of December 29, 2005, Consent and
Amendment No. 4 to Loan and Security Agreement, dated as of January
24, 2006, Consent and Amendment No. 5 to Loan and
Security Agreement, dated as of March 31, 2006, Amendment No. 6 to
Loan and Security Agreement, dated as of July 18, 2006, Amendment
No. 7 to Loan and Security Agreement, dated as of October 30, 2006,
Amendment No. 8 and Waiver to Loan and Security Agreement, dated as
of December 28, 2006, Consent and Amendment No. 9 to Loan and
Security Agreement, dated as of December 28, 2006, Amendment No. 10
and Waiver to Loan and Security Agreement, dated as of March 29,
2007, Amendment No. 11 to Loan and Security Agreement, dated as of
July 20, 2007, Amendment No. 12 to Loan and Security Agreement,
dated as of September 10, 2007, Amendment No. 13 to Loan and
Security Agreement, dated as of November 5, 2007, Amendment No. 14
to Loan and Security Agreement, dated as of February 14, 2008,
Amendment No. 15 to Loan and Security Agreement, dated
as of February 14, 2008, and Amendment No. 16 dated as
of October 29, 2008 (as the same now exists or may
hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced, the “Loan
Agreement”), and the other agreements, documents and
instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto (all of the
foregoing, together with the Loan Agreement, as the same now exist
or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to
herein as the “Financing Agreements”);
WHEREAS, Borrowers have requested that Agent and
Lenders make certain amendments to the Loan Agreement and the
other Financing Agreements, and Agent and Lenders are willing to
make such amendments, subject to terms and conditions set forth
herein;
WHEREAS, by
this Amendment, Borrowers, Guarantors, Agent and Lenders desire and
intend to evidence such amendments;
NOW THEREFORE,
in consideration of the foregoing, and the respective agreements
and covenants contained herein, the parties hereto agree as
follows:
(a) Additional Definitions
. As used herein, the following terms shall have the
following meanings given to them below, and the Loan Agreement and
the other Financing Agreements are hereby amended to include, in
addition and not in limitation, the following:
(i) “Amendment No. 17” shall mean
Amendment No. 17 to Loan and Security Agreement, dated as of March
6, 2009, by and among Borrowers, Guarantors, Agent and Lenders, as
the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
(ii) “Amendment No. 17 Effective
Date” shall mean the first date on which all of the
conditions precedent to the effectiveness of Amendment No. 17 shall
have been satisfied or shall have been waived by Agent.
(iii) “Exempt Subsidiary” shall mean
that certain Subsidiary of Parent designated as such in writing by
Working Capital Agent and such other parties as shall be required
under the Working Capital Loan Agreement.
(iv) “Lucas China” shall mean
Lucas-Milhaupt Brazing Materials (Suzhou) Co., Ltd., a Chinese
corporation that is a Subsidiary of Lucas, and its successors and
assigns.
(b) Amendments to Definitions
.
(i) EBITDA . The definition of
“EBITDA” in Section 1.30 of the Loan Agreement is
hereby amended by deleting such definition in its entirety and
replacing it with the following:
“1.32 ‘EBITDA’
shall mean, as to any Person, with respect to any period, an amount
equal to: (a) the Consolidated Net Income of such Person for such
period, plus (b) depreciation and amortization for such
period (to the extent deducted in the computation of Consolidated
Net Income of such Person), all in accordance with GAAP,
plus (c) Interest Expense for such period (to the extent
deducted in the computation of Consolidated Net Income of such
Person), plus (d) the Provision for Taxes for such
period (to the extent deducted in the computation of Consolidated
Net Income of such Person), plus (e) non cash accruals for
such period for environmental liabilities (to the extent that (1)
such accruals were deducted in the computation of Consolidated Net
Income of such Person for such period and (2) the aggregate amount
of all such accruals previously added back pursuant to this clause
(e) and which remain accruals does not exceed $3,000,000),
minus (f) cash expenses incurred during such period in
connection with environmental liabilities to the extent accruals
relating to such environmental liabilities were added back pursuant
to clause (e) of this definition, plus (g) losses realized
during such period in connection with the inventory hedging program
of such Person (to the extent that such losses were deducted in the
computation of Consolidated Net Income of such Person for such
period), minus (h) gains realized during such period in
connection with the inventory hedging program of such Person (to
the extent that such gains were added in the computation of
Consolidated Net Income of such Person for such
period).”
(ii) Intercreditor Agreement
. The definition of “Intercreditor
Agreement” in Section 1.60 of the Loan Agreement is hereby
amended by deleting such definition in its entirety and replacing
it with the following:
“1.60
Intercreditor Agreement’ shall mean the Intercreditor and
Subordination Agreement, dated as of February 14, 2008, as amended
by Amendment No. 1 to Intercreditor and Subordination Agreement,
dated as of October 29, 2008, and Amendment No. 2 to Intercreditor
and Subordination Agreement, dated as of the Amendment No. 17
Effective Date, by and among Agent, Bairnco Agent and Working
Capital Agent, as acknowledged and agreed by Borrowers and
Guarantors, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or
replaced.”
(iii) Interest Rate . The
definition of “Interest Rate” in Section 1.62(a) of the
Loan Agreement is hereby amended by deleting such subsection in its
entirety and replacing it with the following:
“(a)
Subject to clause (b) of this definition below, a rate equal to the
rates set forth in clauses (a)(v) and (a)(vi) of the
definition of “Interest Rate” in the Working Capital
Loan Agreement, plus the “Applicable Term B Loan
Margin” (as defined in the Working Capital Loan Agreement),
plus three (3%) percent per annum.”
(v) Specified Subsidiaries
. The definition of “Specified Subsidiaries in
Section 1.111C of the Loan Agreement is hereby amended by deleting
such subsection in its entirety and replacing it with the
following:
“
‘Specified Subsidiaries’ shall mean, collectively, (a)
Maryland Wire, (b) H&H Tube, (c) H&H Electronic, (d)
Hardy & Harman Ele (Asia) SdN Bhd., a Malaysian corporation,
(e) Indiana Tube Denmark (effective as of December 31, 2008), (f)
Sumco (effective upon the consummation of either (x) the sale of
all of the Capital Stock of Sumco as permitted by
Section 9.7(b)(viii) hereof or (y) the sale or other
disposition of all or substantially all of the assets and
properties of Sumco as permitted by Section 9.7(b)(viii)
hereof (other than the Real Property and related Equipment of Sumco
located in Indianapolis, Indiana) and either the cessation of
operations of Sumco or the winding up, liquidation or dissolution
of Sumco as permitted by Section 9.7(c) hereof), and (g) the
Exempt Subsidiary (effective upon the consummation of either (x)
the sale of all of the Capital Stock of the Exempt Subsidiary as
permitted by Section 9.7(b)(ix) hereof or (y) the sale or
other disposition of all or substantially all of the assets and
properties of the Exempt Subsidiary as permitted by
Section 9.7(b)(ix) hereof and the cessation of operations of
the Exempt Subsidiary).”
2.
Sale of Assets Consolidation, Merger, Dissolution, Etc
.
(a) Section 9.7(b) of the Loan Agreement is
hereby amended by (a) deleting “and” appearing at
the end of subsection (vii), and (b) inserting the following new
subsection (ix) immediately prior to the semicolon at the end of
such Section:
“and (ix)
the sale by Parent of the Capital Stock of the Exempt Subsidiary or
the sale of assets and properties of the Exempt Subsidiary;
provided , that , such sale shall be on such terms
and conditions satisfactory to and approved in writing by the
Working Capital Agent and such other parties as shall be required
by the Working Capital Loan Agreement;”.
(b) Section 9.7(c) of the Loan Agreement is
hereby amended by deleting such Section in its entirety and
replacing it with the following:
“(c) wind up, liquidate or
dissolve, except that Sumco, any Guarantor or Indiana
Tube Denmark may wind up, liquidate and dissolve, provided ,
that , each of the following conditions is satisfied: (i)
the winding up, liquidation and dissolution of Sumco, such
Guarantor or Indiana Tube Denmark shall not violate any law or any
order or decree of any court or other Governmental Authority in any
material respect and shall not conflict with or result in the
breach of, or constitute a default under, any indenture, mortgage,
deed of trust, or any other agreement or instrument to which
Indiana Tube Denmark, any Borrower or Guarantor is a party or may
be bound, (ii) such winding up, liquidation or dissolution
shall be done in accordance with the requirements of all applicable
laws and regulations, (iii) effective upon such winding up,
liquidation or dissolution, all of the assets and properties of
Sumco, such Guarantor or Indiana Tube Denmark shall be duly and
validly transferred and assigned to a Borrower or Guarantor, free
and clear of any liens, restrictions or encumbrances other than the
security interest and liens of Working Capital Agent and Agent (and
Working Capital Agent and Agent shall have received such evidence
thereof as each may require) and Working Capital Agent and Agent
shall have received such deeds, assignments or other agreements as
Working Capital Agent and Agent may request to evidence and confirm
the transfer of such assets; provided , that , in the
event that Sumco has ceased its operations following the sale or
other disposition of substantially all of its assets and properties
as permitted by Section 9.7(b)(viii) hereof but retained its
Real Property and related Equipment located in Indianapolis,
Indiana, Sumco shall not be required to comply with this clause
(iii), (iv) Working Capital Agent and Agent shall have received all
documents and agreements that Indiana Tube Denmark, any Borrower or
Guarantor has filed with any Governmental Authority or as are
otherwise required to effectuate such winding up, liquidation or
dissolution, (v) no Borrower or Guarantor shall assume any
Indebtedness, obligations or liabilities as a result of such
winding up, liquidation or dissolution, or otherwise become liable
in respect of any obligations or liabilities of the entity that is
winding up, liquidating or dissolving, unless such Indebtedness is
otherwise expressly permitted hereunder, (vi) Working Capital
Agent and Agent shall have received not less than ten (10) Business
Days prior written notice of the intention of Sumco, such Guarantor
or Indiana Tube Denmark to wind up, liquidate or dissolve, and
(vii) as of the date of such winding up, liquidation or
dissolution and after giving effect thereto, no Default or Event of
Default shall exist or have occurred and be continuing;
or”.
3.
Encumbrances . Section 9.8 of the Loan Agreement
is hereby amended by (a) deleting “and” appearing
at the end of subsection (l) of such Section, (b) deleting the
period appearing at the end of subsection (m) of such Section and
replacing it with “; and” and (c) adding the
following new subsection (n) at the end of such Section:
“(n) the
security interests and liens in favor of any lender to Lucas China
on the assets and properties of Lucas China (other than any Capital
Stock of a Borrower or Guarantor) securing the Indebtedness
permitted under Section 9.9(p) hereof.”
4.
Indebtedness under Bairnco Guaranty Documents
. Section 9.9(o)(i) of the Loan Agreement is hereby
amended by deleting such Section in its entirety and replacing it
with the following:
“(i) the
aggregate amount of the Bairnco Debt shall not exceed $12,000,000,
as such amount may be reduced in accordance with the terms of the
Intercreditor Agreement;”.
5.
Indebtedness of Lucas China . Section 9.9 of the
Loan Agreement is hereby amended by (a) deleting the
period appearing at the end of clause (l) of such Section and
replacing it with a semicolon, and (b) adding the following
new clause (n) at the end of such Section:
“and (n)
Indebtedness of Lucas China, provided , that , (i)
the aggregate principal amount of such Indebtedness shall not
exceed $1,000,000 at any time; (ii) no Borrower or Guarantor
shall be directly or indirectly liable in respect of such
Indebtedness (by virtue of such Borrower or Guarantor being the
primary obligor on such Indebtedness, guarantor of such
Indebtedness, or otherwise); and (iii) the occurrence of a
default with respect to such Indebtedness shall not
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